New South Wales Bills Explanatory Notes

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CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) BILL 1998

and Protection) Bill 1998

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.*
The Children and Young Persons Legislation (Repeal and Amendment Bill
1998 is cognate with this Bill.

Overview of Bill

* the report entitled The Goverment `s responsibility ,for the Care and
Protection of Children and Young People: Recommendations for Law
Reform. and
* the Recommendations for the Reform of Children 's Services.

The Bill creates the office of Children's Guardian and specifies the functions
of the Children's Guardian. particularly with respect to the exercise of
parental responsibility for children and young persons.

* Amended in committee--see table at end of volume.

The Bill defines child, except in Chapter 13 (Children's employment), as a
person who is under the age of 16 years and a young person as a person who
is aged 16 years or above but who is under the age of 18 years.

The Bill, in order to provide consistency with other legislation, such as the
Family Law Act 1975 of the Commonwealth, replaces the expression
"guardianship" with the expression "parental responsibility" and "access"
with "contact". "Foster care" becomes a type of "out-of-home care".

Outline of provisions

Preliminary

Chapter 1 contains clauses 1­6. It sets out the name of the proposed Act.

provides for its commencement on a day or days to be appointed by
proclamation. provides for the definition of certain words and expressions
used in the proposed Act. identifies the children and young persons to whom
the proposed Act applies and contains other provisions of a general
introductory nature.

Chapter 2

Objects, principles and responsibilities

Part 1

Objects and principles

Part 1 of Chapter 2 contains clauses 7­10. It sets out the key objects of the
proposed Act which are to govern measures for the care and protection of.

and the provision of services to. children and young persons and the
principles that are to be applied in the administration of the proposed Act. It
establishes a principle concerning the participation of children and young
persons in decision-making that applies to all persons who exercise functions
under the proposed Act.

Part 2

Aboriginal and Torres Strait Islander principles

Part 2 of Chapter 2 contains clauses 11­14. It makes special provision in
relation to matters concerning Aboriginal and Torres Strait Islander children
and young persons. including the right of Aboriginal and Torres Strait
Islander participation in placement decisions.

Explanatory note page 2

Part 3

Responsibilities

Part 3 of Chapter 2 contains clauses 15­19. It sets out the general roles of the
Minister and of the Director-General of the Department of Community
Services in relation to the care and protection of children and young persons
and seeks to ensure the co-ordinated provision of services generally to
children and young persons.

Chapter 3

Requests for assistance and reports

Part 1

Requests for assistance

Part 1 of Chapter 3 contains clauses 20­22. It recognises the right of children
and young persons and their parents to seek assistance from the Department
of Community Services. through the Director-General. It sets out the general
nature of the responses that may be made to a request for assistance.

Part 2

Reports

Part 2 of Chapter 3 contains clauses 23­29. It sets out the circumstances in
which persons involved in their paid employment with children are obliged to
report circumstances in which a child may be at risk of harm. The grounds
for mandatory reporting are differentiated from the grounds on which an
order for the care and protection of a child or young person in proceedings
before the Children's Court may be sought (see clause 71). The Part provides
protection from civil and criminal liability for persons who make reports. It
also provides for the form of reports and the keeping of records of reports.

Part 3

Investigations and assessment

Part 3 of Chapter 3 contains clauses 30­33. It requires the Director-General
to investigate and make an assessment of a report to determine whether a
child or young person is at risk of harm. It makes provision for the early
recognition of children and young persons as being of Aboriginal or Torres
Strait Islander descent. It requires the Director-General to make arrangements
with the Ombudsman for the investigation and assessment of a report that
contains an allegation of abuse made against a member of the staff of the
Department of Community Services.

Explanatory note page 3

Chapter 4

Children and young persons in need of

care and protection

Chapter 4 contains clauses 34­42, It sets out the range of actions the
Director-General may take to ensure the protection of a child or young person
who may be in need of care and protection. It establishes principles of
intervention to give the Department, through the Director-General, more
flexibility in the way in which it responds, so that it can give priority to those
children and young persons who are most at risk. It seeks to ensure that
children and young persons are protected by using the least intrusive option.

It provides a range of measures. such as recourse to alternative dispute
resolution and the development of a care plan, that may avoid or reduce the
need for Children's Court proceedings.

Chapter 5

Children's Court proceedings

Part 1

Emergency protection and assessment

Part 1 of Chapter 5 contains clauses 43­59. It sets out a range of measures
that will enable a prompt response to be made to ensure the care and
protection of children and young persons who are at immediate risk of
serious harm.

Division 1

Emergency removal

Division 1 of Part 1 enables the removal of children and young persons from
circumstances that cause them to be in immediate need of care and
protection. The Director-General is to assume their care and protection and
must make prompt application to the Children's Court for an order for their
care and protection.

Division 2

Emergency care and protection orders

Division 2 of Part 1 enables the Children's Court to make orders for the
emergency protection of children and young persons who have been removed
under Division 1.

Division 3

Other removal authorised by the Children's Court

Division 3 of Part 1 enables the Children's Court to make an order that will
enable the removal of a child or young person who is in immediate need of
care and protection.

Explanatory note page 4

Division 4

Who has care responsibility?

Division 4 of Part 1 provides for the care of a child or young person who is
removed under the provisions of Part 1.

Division 5

What information must be given following

removal?

Division 5 of Part 1 requires the Director-General to give information
concerning the removal of a child or young person to certain persons.

Division 6

Examination and assessment orders

Division 6 of Part 1 enables the Children's Court to make certain orders for
the medical and other examination and assessment of a child or young person
who is removed under the provisions of Part l .
Part 2

Care applications

Part 2 of Chapter 5 contains clauses 60--91. It provides for the making of
applications to the Children's Court for an order for the care and protection of
a child or young person. It sets out the grounds that must exist for the making
of a care and protection order. The range of care and protection orders is
more extensive than that provided under the Children (Care and Protection)
Act 1987. It includes orders for the provision of support services, orders to
attend therapeutic or treatment programs. orders for supervision. orders
allocating parental responsibility. contact orders and the making of interim
orders as well as final orders. The Part provides for the making of care plans
and restoration plans. It enables the making of applications for the rescission
and variation of care orders and the making of appeals.

Chapter 6

Children's Court procedure

Chapter 6 contains clauses 92--109. It specifies the procedures that are to be
followed in proceedings under the proposed Act before the Children`s Court.

Generally proceedings are not to be conducted in an adversarial manner and
with as little formality and legal technicality and form as the circumstances of
the case permit. The Children`s Court is not bound by the rules of evidence.

The Chapter provides for the attendance of the parties to a care application.

rights of appearance and legal representation. the appointment of guardians
ad litem. the right to be accompanied by support persons. the presentation of
the views of siblings. the admissibility of certain evidence and the

Explanatory note page 5

examination and cross-examination of witnesses. It also provides for the
exclusion of the general public from proceedings and makes it an offence of
strict liability to publish the name or other identifying information that might
lead to the identification of a child or young person involved in proceedings
before the Children's Court.

Chapter 7

Support for children and young persons

in crisis

Part 1

Serious or persistent conflict

Part 1 of Chapter 7 contains clauses 110--1 19. It makes special provision for
circumstances where the safety, welfare and well-being of a child or young
person is in jeopardy because:

* there is a serious or persistent conflict between the child or young
person and his or her parents. or
* the parents are unable to provide adequate supervision for the child or
young person.

It sets out the principles that are to apply in the administration of the Part,
requests for assistance and the range of responses that may be brought to a
request. including alternative dispute resolution and the preparation and
adoption of alternative parenting plans.

Part 2

Homelessness

Part 2 of Chapter 7 contains clauses 120--122. It provides for the reporting of
the homelessness of children and young persons to the Director-General.

Part 3

Compulsory assistance

Part 3 of Chapter 7 contains clauses 123--133. It regulates the provision of
compulsory assistance. which is a form of intensive care and support for a
child or young person that is necessary to protect the child or young person
from suicide or other life-threatening or self-destructive behaviour. It enables
the Children's Court to make a compulsory assistance order of not more than
3 months' duration and sets out the terms that such an order may contain. The
Children's Guardian is required to be notified of the making of an order
under Part 3 and has the responsibility of monitoring the circumstances of a
child or young person who is subject to such an order.

Explanatory note page 6

Chapter 8

Out-of-home care

Part 1

Introduction

Part 1 of Chapter 8 contains clauses 134--141. It regulates the provision of
accommodation to children and young persons in out-of-home care
(previously known as foster care). Placement of children in out-of-home care
may only be effected by an accredited body, called a designated agency, or
the Children's Guardian. The placement may only be made with an
accredited person. called an authorised carer.
Part 2

Out-of-home care under order of Children's Court

Part 2 of Chapter 8 contains clauses 142--150. It applies if a child is placed in
out-of-home care pursuant to an order of the Children's Court.

Division 1

General

Division 1 of Part 2 includes provisions that confer on an authorised carer a
right to certain information concerning a proposed placement. prescribe the
extent to which an authorised carer may participate in decisions concerning
the safety. welfare and well-being of a child or young person in his or her
care. and create an entitlement to indemnity for damage that may be caused
by a child or young person while in his or her care.

Division 2

Review of out-of-home care under order of

Children's Court

Division 2 of Part 2 requires the designated agency responsible for the
placement of a child or young person with an authorised carer to conduct
periodic and other reviews of the placement.

Part 3

Voluntary out-of-home care

Part 3 of Chapter 8 contains clauses 151--156. It applies if a child is placed in
out-of-home care otherwise than pursuant to an order of the ,Children`s Court.

Division 1

Voluntary out-of-home care arranged by

Director-General

Division 1 of Part 3 sets out the circumstances in which the Director-General
may make temporary care arrangements in respect of a child or young person
who is in need of care and protection and provides for the duration. renewal
and review of those arrangements.

Explanatory note page 7

Division 2

Other voluntary care arrangements

Division 2 of Part 3 provides for the monitoring and review of the placement
of children and young persons in voluntary out-of-home care, otherwise than
under a temporary care arrangement.

Part 4

Daily care and control

Part 4 of Chapter 8 contains clauses 157 and 158. They set out the care
responsibility of an authorised carer and specify the circumstances in which a
person having parental responsibility for, or the authorised carer of, a child or
young person may restrain the child or young person because. if not
restrained. he or she might seriously injure himself or herself or another
person or might cause the loss of or damage to any property.

Part 5

Arrangements during out-of-home care

Part 5 of Chapter 8 contains clauses 159--164. It provides for the keeping of
records relating to out-of-home care. the payment of allowances for children
and young persons in out-of-home care and the rights of children and young
persons in out-of-home care.

Part 6

Arrangements on leaving out-of-home care

Part 6 of Chapter 8 contains clauses 165--170. It enables the provision of
assistance to persons on leaving out-of-home care, it requires the designated
agency having supervisory responsibility for a child or young person to
prepare a plan to be implemented when the child or young person leaves
out-of-home care and it entitles such a child or young person to have access
to. or possession of. personal records relating to him or her.

Part 7

Miscellaneous

Part 7 of Chapter 8 contains clauses 171 and 172. It enables the removal of
children and young persons from unauthorised out-of-home care and requires
the designated agency having supervisory responsibility for a child or young
person who dies while in out-of-home care to immediately cause notice of the
death to be given to the child's or young person's parents. the Children's
Guardian and the Coroner.

Explanatory note page 8

Chapter 9

Medical examination and treatment

Part 1

Medical examination of children and young

persons in need of care and protection

Part 1 of Chapter 9 contains clauses 173--1 75. It enables the medical
examination of children who are believed to be in need of care and protection
and the provision of emergency medical treatment. It also regulates the
carrying out of special medical treatment (as defined in clause 168) on a
child.

Part 2

Treatment of children and young persons in

out-of-home care ordered by the Children's Court

Part 2 of Chapter 9 contains clauses 176 and 177. It regulates the carrying out
of special medical examinations (as defined in clause 169) of children or
young persons who reside in out-of-home care in accordance with an order of
the Children's Court. It also regulates the provision to such children and
young persons of ordinary medical and dental treatment.

Chapter 10 Children's Guardian

Part 1

Appointment

Part 1 of Chapter 10 contains clauses 178 and 179. It provides for the
appointment by the Governor of a Children's Guardian and an acting
Children's Guardian.

Part 2

Functions

Part 2 of Chapter 10 contains clauses 180--186. It specifies the functions of
the Children's Guardian with respect to parental responsibility, the removal of
the daily care and control of a child or young person from an authorised
carer. the making of applications to the Children's Court for the rescission
and variation of orders and the resolution of certain disputes arising in the
administration of the proposed Act.

Part 3

Reports

Part 3 of Chapter 10 contains clauses 187--190. It enables the making of
annual reports and special reports to Parliament by the Children's Guardian.

Explanatory note page 9

Chapter 11 Child Death Review Team

Chapter 11 contains clauses 191--198. It reproduces the former provisions of
the Children (Care and Protection) Act 1987, as amended by the Commission
for Children and Young People Act 1998.

Chapter 12 Children's services

Part 1

Preliminary

Part 1 of Chapter 12 contains clauses 199 and 200. It contains definitions for
the purposes of the Chapter, including a definition of children's service.
Part 2

Purpose of Chapter

Part 2 of Chapter 12 contains clauses 201­203. It sets out the objects of the
Chapter and the principles on which the provision of children`s services
should be based.

Part 3

Licensing of children's services

Part 3 of Chapter 12 contains clauses 204­21 3. It prevents the provision of
certain children`s services. and the advertising of children's services. unless
the person providing the service has a licence under the Part. It regulates
applications for licences. the granting of licences. the conditions to which
licences may be subject and the variation. suspension and revocation of
licences.

Part 4

Matters relating to parents

Part 4 of Chapter 12 contains clauses 214 and 215. It requires the provision
of certain information by licensees to parents of children enrolled for a
children`s service of the licensee and ensures freedom of contact between
parents and their children at any time during which a children's service is
being provided to the child.

Part 5

Miscellaneous

Part 5 of Chapter 12 contains clauses 216­220. It contains provisions that
enable the exclusion of persons from involvement with a children`s service.

the termination of illegal children`s services and the making of regulations
for the purposes of the Chapter.

Explanatory note page 10

Chapter 13 Children's employment

Chapter 13 contains clauses 221­226. It reproduces. without amendment, the
former provisions of the Children (Care and Protection) Act 1987.

Chapter 14 Offences involving children and young

persons

Chapter 14 contains clauses 227­231. It creates offences relating to:

* the abuse of children and young persons
* the neglect of children and young persons
* the unauthorised removal of children and young persons from the care
and protection of persons into whose care and protection they have
been placed under the proposed Act
* the tattooing of children and young persons without the written
consent of a parent
* the leaving of children and young persons unsupervised in motor
vehicles.

Chapter 15 Removal of persons and entry of

premises and places

Part 1

Removal of persons

Part 1 of Chapter 15 contains clauses 232­234. It contains provisions that
enable the removal of children and young persons pursuant to certain orders
of the Minister or under the authority of a search warrant.

Part 2

Entry of premises and places

Part 2 of Chapter 15 contains clauses 235­237. It contains provisions that
enable the entry and inspection of premises for the purposes of the proposed
Act. either under the authority granted by a specific provision of the proposed
Act or a search warrant.

Part 3

Ancillary functions

Part 3 of Chapter 15 contains clauses 238­244. It specifies the functions that
may be carried out in association with the exercise of the functions conferred
by or under Parrs 1 and 2.

Explanatory note page 11

Chapter 1 6 Administrative review

Chapter 16 contains clause 245. It specifies the decisions made under the
proposed Act that are subject to review, via the Community Services
(Complaints, Reviews and Monitoring) Act 1993, by the Administrative
Decisions Tribunal.

Chapter 17 Miscellaneous

Chapter 17 contains clauses 246­265. It makes provision for miscellaneous
matters relating to the administration and enforcement of the proposed Act.

Schedule 1

Child Death Review Team

Schedule 1 contains provisions relating to:

* the terms and conditions of appointment of members of the Child
Death Review Team
* the procedure at meetings of the Team.

Schedule 2

Provisions relating to employers' authorities

Schedule 2 contains provisions relating to the making of applications for
employers' authorities, the determination of applications, the duration of
authorities. the terms and conditions of authorities. the variation of
authorities and the suspension and revocation of authorities.

Schedule 3

Savings, transitional and other provisions

Schedule 3 contains savings. transitional and other provisions required as a
consequence of the enactment of the proposed Act.

Explanatory note page 12

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